25 July 2014

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Leveson and data protection – a hidden threat

When thinking of a topic for our next instalment of legal commentary, it was obvious that I had to talk about Leveson.

But what is there to say? The debate over a new self-regulatory body, possibly underpinned by statute, is in full flow, and anything I write will have already been said, or be out of date by the time you read this.

Having looked at the executive summary of the report, it becomes apparent that there is another less publicised demon lurking in the recommendations – the proposed changes to data protection law.

The Data Protection Act 1998 is a complicated beast; most people don’t understand it, they just want to know how to comply with it.

The introduction to the Act outlines that its purpose is to regulate the “processing of information relating to individuals, including the obtaining, holding, use or disclosure of such information”. As such, the Act is of great significance to journalists when it comes to holding information in relation to people featured in their articles.

Section 32 of the Act is crucial to journalists and gives you a special exemption from some of the data protection principles and various sections of the Act. Essentially, if the information is held with a view to publication; the holder of the data reasonably believes it is in the public interest to hold the data, bearing in mind the importance of freedom of expression; and compliance with the provisions is compatible with the special purposes of journalism, then a number of obligations imposed by the Act do not apply.

Journalists rely on this section on a daily basis.

However, Leveson proposes that the scope of section 32 is narrowed so that the personal data held by journalists needs to be “necessary” for publication, rather than held with a view to publication. Leveson recommends that wording be introduced to provide for a balancing exercise between freedom of expression and privacy, rather than the current emphasis on freedom of expression. An objective public interest in the publication of the data will need to outweigh the intrusion into privacy in order to be protected by the modified section 32.

Further to that, the proposal is that section 32 should no longer allow the data to be automatically exempt from many of the data protection principles, and the right of subject access.

In practice, if the data is no longer automatically exempted from the right of subject access by virtue of a narrower section 32, journalists will find themselves having to provide subjects with the data that is held about them if they request it – an unwanted and time consuming change that could also prove damaging to the articles journalists produce, let alone the principle of protecting confidential sources.

A ‘beefing’ up of the Information Commissioners Office (ICO) is proposed, giving it added prosecution powers and increased contact with the CPS.

The idea of the ICO being replaced by a Board of Commissioners drawn from different relevant industries, including a Commissioner from the media sector, rounds off the data protection proposals.

The significance of these proposed changes, especially in relation to Section 32, should not be underestimated; they represent another challenge to freedom of expression and the freedom of the press.

It’s crucial that whilst the limelight is on the issue of a new regulatory body, these changes don’t slip through without proper scrutiny.



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